Frierson v. Ojeda

Filing 52

ORDER GRANTING 44 Defendant's Motion to Modify Scheduling Order to Extend Dispositive Motions Deadline signed by Magistrate Judge Gary S. Austin on 10/13/2016. Dispositive Motions Deadline: 12/15/2016. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LAVELL FRIERSON,

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Plaintiff,

ORDER GRANTING DEFENDANT’S
MOTION TO MODIFY SCHEDULING
ORDER TO EXTEND DISPOSITIVE
MOTIONS DEADLINE
(ECF No. 44.)

Defendant.

New Dispositive Motions Deadline:
December 15, 2016

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vs.

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1:14-cv-00553-DAD-GSA-PC

OJEDA,

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I.

BACKGROUND

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Lavell Frierson (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis

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with this civil rights action pursuant to 42 U.S.C. § 1983. This case proceeds with Plaintiff’s

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initial Complaint, filed on April 18, 2014, against defendant Correctional Officer U. Ojeda

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(“Defendant”) on Plaintiff’s Eighth Amendment Claim arising out of the placement of a

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cellmate in Plaintiff’s cell. This case is scheduled for a settlement conference on November 10,

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2016 at 1:00 p.m. before Magistrate Judge Kendall J. Newman at the U. S. District Court in

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Sacramento, California. (ECF No. 34.)

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On December 2, 2015, the Court issued a discovery and scheduling order setting out

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case deadlines, including deadlines of August 2, 2016 for completion of discovery and October

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11, 2016 for the filing of dispositive motions. (ECF No. 25.)

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On August 31, 2016, Defendant filed a motion to extend the deadline for filing

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dispositive motions. (ECF No. 44.) Plaintiff has not opposed the motion.

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II.

MOTION TO MODIFY SCHEDULING ORDER

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Modification of a scheduling order requires a showing of good cause, Fed. R. Civ. P.

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16(b), and good cause requires a showing of due diligence, Johnson v. Mammoth Recreations,

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Inc., 975 F.2d 604, 609 (9th Cir. 1992). To establish good cause, the party seeking the

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modification of a scheduling order must generally show that even with the exercise of due

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diligence, they cannot meet the requirement of the order. Id. The court may also consider the

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prejudice to the party opposing the modification. Id. If the party seeking to amend the

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scheduling order fails to show due diligence the inquiry should end and the court should not

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grant the motion to modify. Zivkovic v. Southern California Edison, Co., 302 F.3d 1080, 1087

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(9th Cir. 2002).

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III.

DISCUSSION

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Defendant represents that he intends to file a motion for summary judgment in this case.

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Defendant requests an extension of time to file a motion for summary judgment because this

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case is scheduled for a Settlement Conference on November 10, 2016 and could be resolved in

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its entirety at the Settlement Conference rendering any motion for summary judgment moot.

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Defendant argues that rather than expending the time and resources preparing and responding

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to a motion for summary judgment, it would make more sense at this juncture for the parties to

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focus their efforts on resolving the case at the settlement conference.

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The Court finds good cause to extend the dispositive motions deadline until after the
Plaintiff has not opposed Defendant’s motion.

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Settlement Conference.

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dispositive motions deadline shall be extended to December 15, 2016 for all parties to this case.

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Therefore, the

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IV.

CONCLUSION

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Based on the foregoing, IT IS HEREBY ORDERED that:

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Defendant’s motion to modify the Court’s scheduling order, filed on August 31,
2016, is GRANTED; and

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The dispositive motions deadline is extended from October 11, 2016 to
December 15, 2016, for all parties to this case.

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IT IS SO ORDERED.
Dated:

October 13, 2016

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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